October 16, 2008

Let's Do It Our Way

The USPTO has filed
a reply brief in appeal for its righteous battle to enact its Final Solution, changes
limiting extravagance on claims and continuations. According to the
brief, a rehash of earlier cogent and compelling arguments, the rules are consistent with the Patent
Act, and are within the Office's rulemaking authority. If there is a difference between "substance" and "procedure," which the PTO
does not perceive, the rules are merely procedural.

Here's a procedural tidbit: make an applicant search the prior art if s/he
wants a lot of claims.

The statute is silent on searching, and thus the USPTO may fill the gap.
Here, the Office is doing exactly that - promulgating a regulation for
searching by an applicant because examiners make more errors as the number
of claims increase. The requirement does not shift the examination burden.

That's right, requiring the applicant to search the prior art does not change
the examination burden. Regardless of the prior art, the examiner still
gets to "make more errors as the number of claims increase." No change,
procedurally or substantially. Thus the above statement clarifies that applicant search fee for examination
is merely procedural, enriching USPTO coffers with no change in examination
quality.

Under the desired Final Solution, an applicant may have
a procedural change of being required to search the prior art. There is nothing
substantial about it. If an applicant doesn't find any invalidating art, the search had no
substance. If an applicant finds invalidating prior art, the application had no
substance. Either way, no substance.

We can all agree that the old ways are the best. And new ways are old ways if
they're new in an old way, like having a federal agency tell you,
peasant-citizen, about a few minor tweaks, how things ought to be, because,
gosh, they're just here to help.

Attitude inspired by that beacon of enlightenment, the delightful and
refreshing Republican brain trust, Ms. Sarah Palin, whose existence on the
Presidential ticket existentially poses the
question: how fast can William F. Buckley spin in his grave?

"That's right, requiring the applicant to search the prior art does not change the examination burden."

"change" is not the same as "shifts". Look up the two words sometime hawk.

Of course it "changes" the burden of searching, but the burden of searching is only an addendum that others has added on to statutory "examination".

"the above statement clarifies that applicant search fee for examination is merely procedural, enriching USPTO coffers with no change in examination quality. "

As you yourself are aware a specific amount of $ will entitle you to a certain amount of time spent searching in the real world and I see no real reason that should not apply to the PTO.

"Either way, no substance."

That is funny, but I'm quite sure you're willfully ignoring the fact that the "procedure" in question may have substantive effects without turning a "procedural" rule that caused the shift in procedure into a "substantive" one.

"And new ways are old ways if they're new in an old way, like having a federal agency tell you, peasant-citizen, about a few minor tweaks, how things ought to be, because, gosh, they're just here to help."

Actually they're telling you how things are going to be, not necessarily how they ought to be. In fact, I'm pretty sure that Dudas himself would admit that in happy go phawk smiley unicorn land everyone ought have infinite claims and pay no fees to submit an application, as well as having a permanent continuation filed. Of course there ought to be no maintenance fee either.